FCC seeks delay in nets' case

Network affils may have to wait for their day in court

By WILLIAM TRIPLETT

The Federal Communications Commission has asked the federal court slated to hear legal challenges brought by network affiliates against recent indecency decisions to postpone the start of the case.

Affils of NBC, ABC and CBS have endorsed the agency's request, while Fox affiliates intend to oppose it.

In March the FCC issued an omnibus order regarding numerous complaints of violations of federal indecency rules. Order held that affils of ABC, CBS and Fox indeed violated those rules with various programs, but the agency issued no fines in the cases. ABC, CBS and Fox then challenged the order in court. While not a subject of the order, NBC joined the suit because it has had a similar case pending FCC review for over two years.

The agency said it is seeking the postponement, or "voluntary remand," so it can let the affiliates make their case to the commission for why they don't believe they violated any rules. Some affils complained that the FCC never gave them the chance; they also said they were concerned the court might not allow the case to go forward if they hadn't petitioned the agency for reconsideration.

Whether the U.S. Circuit Court of Appeals for the 2nd Circuit will agree to postpone the case -- skedded to take briefs next week -- isn't clear, but courts tend to prefer hearing cases in which all appeals to the relevant governmental agency have been exhausted.

CBS' case involves utterance of a "fleeting expletive" on "The Early Show," as does NBC's -- rock star Bono saying the f-word during the 2003 Golden Globes broadcast. Thus affils of both nets support a postponement because it will "permit the CBS and NBC affiliates the opportunity to bring to the commission's attention the issues surrounding the affiliate broadcasts of live network news programming," affils said in joint court statement.

ABC affils said in separate statement that they support the postponement because they want to "present argument to the agency" about why particular episodes of "NYPD Blue" did not violate any rules.

Fox affils will oppose any postponement, News Corp. deputy general counsel Ellen Agress said, because they feel arguments have essentially already been made to the FCC -- unsuccessfully -- and the matter is best resolved in court now.